COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00475-CV

TELERESOURCE CORPORATION APPELLANT

V.

ACCOR NORTH AMERICA, INC. APPELLEE

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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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OPINION

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I. INTRODUCTION

Appellant TeleResource Corporation (TRC) appeals from a partial

summary judgment granted in favor of Appellee Accor North America, Inc. and a 

final judgment following a jury trial. In seven issues, TRC argues that the trial 

court erred by granting Accor summary judgment on TRC’s anticipatory 

repudiation claim, that the evidence is legally and factually insufficient to support 
2

some of the jury’s findings, and that the trial court erred by submitting an 

improper jury question on Accor’s damages. We will affirm as modified.

II. BACKGROUND

Accor is a Delaware corporation with its principal place of business in 

Carrollton. Accor owns, operates, or franchises over 900 economy hotels across 

the United States, Canada, and Mexico under the names Motel 6 and Studio 6.

TRC is a Texas corporation with its principal place of business in Dallas. It 

provides telecommunication services and support, sometimes through

subcontractors, for companies in the hospitality industry.

In early April 2003, Accor and TRC signed a Master Services Agreement 

(MSA) in which TRC agreed to provide specific services and support for the 

telecommunication systems used by Accor’s properties, including repairing or 

replacing defective telecommunication parts and components, conducting routine 

maintenance of the systems, and providing remote alarm monitoring. The MSA 

had an initial term of forty-two months and called for two types of fees to be paid 

by Accor to TRC: (1) fees for recurring services and (2) fees for nonrecurring 

services. The monthly recurring-services fee was based upon a set fee per 

guest room and covered the support and services set out in the MSA. Under 

Modification 2 to the MSA, TRC invoiced Accor sixty days in advance of the 

month that TRC was to perform recurring services, and Accor’s payment was 
3

due thirty days before TRC commenced the services.1 The fee for nonrecurring 

services covered labor and materials for services that were not included in the 

recurring-services fee.2TRC invoiced Accor bimonthly for nonrecurring services, 

and Modification 2 required Accor to pay for the services within fourteen days of 

invoicing.

Modification 2 to the MSA contained the following provision regarding 

payment of fees:

Material Default. If [Accor] shall fail to provide payment in 

strict accordance with the dates, deadlines and obligations set forth 

herein the same shall be a material default. In the event of a 

material default TRC may, at its sole option, suspend provision of 

Services under this Agreement until such time as the deficiency, in 

payment, is made without affecting the binding nature of this 

Agreement. Immediately upon receipt of payment in full, of such 

past due monies, which caused the material default, TRC may 

require adequate assurance of future performance by [Accor] and 

upon receipt of such assurance shall immediately resume provision 

of Services under this Agreement. [Accor] expressly agrees that any 

suspension of Services resulting from such Default shall not relieve 

[Accor] of monies due under this Agreement for the term of any such 

suspension. . . . In the event that any such past due fees remain 

 

1

The parties signed Modification 2 to the MSA in December 2003. 

Modification 2 contained the following illustration regarding billing for recurring 

services: When TRC billed Accor on January 1, 2004, Accor’s payment, which 

was due by January 31, 2004, covered TRC’s services for the month of March 

2004.

The parties signed Modification 1 to the MSA soon after signing the MSA. 

Accor was moving its headquarters, and TRC agreed to upgrade and move 

Accor’s telecommunication system to the new location.

2

For example, a nonrecurring-services fee would include the cost of labor

and materials for replacing damaged equipment.
4

unpaid for thirty (30) days beyond the due date, a material Default 

shall have occurred. [Emphasis added.]

TRC completed transitioning Accor’s properties from the previous support 

provider in August 2003. Thereafter, the parties proceeded under the MSA and 

Modifications—TRC provided services and support to Accor’s properties, and 

Accor paid TRC for those services.

With the initial term of the MSA ending in 2006, Accor invited TRC and 

other businesses to submit bids in March 2006 as part of a request for proposal 

process that Accor launched in December 2005. TRC submitted a bid, but Accor 

ultimately chose another business, Source, Inc., to provide the 

telecommunication services and support for its properties after the MSA expired. 

It was around that time that, according to Jorge Gonzalez, TRC’s former CFO 

and president, “things got a little bit messy.”

On August 1, 2006, TRC sent Accor an invoice for October’s recurringservices fee, but Accor declined to pay it because according to the version of the 

MSA in its possession, the initial term of the MSA commenced on April 11, 2003,

(the effective date) and expired forty-two months later in early October 2006. 

Thus, Accor did not want to pay for recurring services beyond the initial term of 

the MSA.3 When the parties met to compare contracts, they learned that TRC 

 

3

TRC also later sent Accor an invoice for November’s recurring-services 

fee, but Accor declined to pay it.
5

had a different version of the MSA—TRC’s MSA had a handwritten effective date 

of June 1, 2003, meaning that the initial term of the MSA expired at the end of 

November 2006, not in early October 2006.

By letter dated August 23, 2006, TRC notified Accor that it would suspend 

service to Accor’s properties effective at 5:00 p.m. that day because pursuant to 

section g.1.(b) of Modification 2 to the MSA, and “as a result of the failure of 

[Accor] to provide payment in strict accordance with the dates, deadlines and 

obligations set forth therein,” Accor had committed a material default under the 

MSA. To avoid a suspension of service, TRC demanded that Accor pay the 

invoices detailed in a spreadsheet attached to the letter by 5:00 p.m. that day. 

According to the spreadsheet, the “Total Balance Outstanding” was $311,183.33. 

Of that amount, approximately $198,000 represented the October 2006 fee for 

recurring services, which was not due until August 31, 2006, according to 

Modification 2 to the MSA. The remaining approximately $112,000 represented 

invoices for nonrecurring services. Of that $112,000, only twelve invoices 

totaling approximately $3,400 had gone unpaid for over thirty days, and sixtythree invoices totaling approximately $23,000 had gone unpaid for at least

fourteen days but less than thirty days. Thus, considering Modification 2’s 

payment requirements for recurring and nonrecurring services, of the 

$311,183.33 that TRC demanded Accor pay to avoid suspended service, 

approximately $284,000 was not yet due.
6

TRC extended the due date for the payment that it had demanded by one 

day, and Accor made efforts to contact TRC’s counsel and negotiate, but TRC 

ultimately suspended service to Accor as of 5:00 p.m. on August 24, 2006.4 On 

September 1, 2006, about a week after TRC had suspended service, TRC 

received Accor’s payment for the twelve invoices for nonrecurring services that 

had gone unpaid for over thirty days and for forty-seven of the invoices for 

nonrecurring services that had gone unpaid for at least fourteen days, but TRC 

did not withdraw its suspension of service. Accor consequently initiated an 

“emergency plan”—its own employees were fielding service-related calls—and it 

accelerated the transition period that had to occur before Source was fully 

capable of handling Accor’s telecommunication needs.

The parties sued each other for breach of contract and other claims. The 

trial court granted Accor’s motion for partial summary judgment on TRC’s claim 

for anticipatory repudiation, and a jury made a number of findings at the 

conclusion of a trial. As relevant to this appeal, jury question number 2 asked,

Did Accor fail to comply with the [MSA] and Modification 2 by 

failing to provide payment or continuing to fail to provide payment in 

strict accordance with the dates, deadlines and obligations set forth 

in paragraph (b), “Non-Recurring Services,” in Modification 2 to the 

[MSA] from August 1, 2006 through August 24, 2006[?]

 

4Accor’s counsel sent TRC a fax stating that Accor considered TRC’s 

“suspension of service . . . to be a breach of the parties’ agreement. [TRC] 

demanded sums not due and payable by [Accor] and then suspended the service 

based on [Accor’s] refusal to pay those sums, even though [Accor] was 

attempting to work with [TRC] on resolving the dispute.”
7

The jury answered, “Yes.” But jury question number 2(a) asked,

Did [TRC] waive, through its course of conduct, strict 

compliance with the requirements of paragraph (b), “Non-Recurring 

Services,” in Modification 2 to the [MSA]?

The jury answered, “Yes.” Jury question number 3 asked,

Did Accor fail to comply with the [MSA] and Modification 2 by 

allowing invoices to remain unpaid for at least thirty (30) days 

beyond the due date as set forth in paragraph (g)(1)(b), “Material 

Default,” of Modification 2 to the [MSA]?

The jury answered, “Yes.” But jury question number 3(a) asked,

Did [TRC] waive, through its course of conduct, strict 

compliance with the requirements of paragraph (g)(1)(b), “Material 

Default,” of Modification 2 to the [MSA]?

As with jury question number 2(a), the jury answered, “Yes.” Jury question 

number 5A asked,

Did [TRC] fail to comply with the [MSA] and Modification 2 by 

improperly suspending services under the [MSA] after demanding 

payment for invoices that were not more than thirty (30) days 

overdue?

The jury answered, “Yes.” Jury question number 12 asked in relevant part,

What sum of money, if any, if paid now in cash, would fairly 

and reasonably compensate Accor for its damages, if any, that 

resulted from [TRC’s] failure to comply with the [MSA]?

The jury answered, “$236,174.70.” Jury question number 14 asked,

What is a reasonable fee for the necessary services of Accor’s 

attorneys, stated in dollars and cents?
8

The jury answered “$190,000” for preparation and representation in the trial 

court; “$25,000” for representation through an appeal to the court of appeals; and 

“$5,000” for representation through proceedings in the supreme court. TRC 

appeals.5

III. PARTIAL SUMMARY JUDGMENT

In its first issue, TRC argues that the trial court erred by granting Accor 

summary judgment on TRC’s anticipatory repudiation claim. TRC argues that it 

did not waive its claim, and it directs us to summary judgment evidence that 

Accor’s general counsel told TRC on August 22, 2006, that Accor had no 

intention of making any further payments to TRC—“a classic repudiation of the 

contract.”

In a summary judgment case, the issue on appeal is whether the movant 

met the summary judgment burden by establishing that no genuine issue of 

material fact exists and that the movant is entitled to judgment as a matter of law. 

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. 

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We take as 

true all evidence favorable to the nonmovant, and we indulge every reasonable 

 

5

The jury additionally found that TRC sustained damages in the amount of 

$86,682.20 for unpaid invoices for nonrecurring services. Thus, excluding

attorneys’ fees, the final judgment awarded Accor $149,492.50 ($236,174.70 less 

$86,682.20). Accor does not appeal that finding.
9

inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. 

Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life & Accident Ins. Co. v. 

Knott, 128 S.W.3d 211, 215 (Tex. 2003). We consider the evidence presented in 

the light most favorable to the nonmovant, crediting evidence favorable to the 

nonmovant if reasonable jurors could and disregarding evidence contrary to the 

nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 

848. The summary judgment will be affirmed only if the record establishes that 

the movant has conclusively proved all essential elements of the movant’s cause 

of action or defense as a matter of law. City of Houston v. Clear Creek Basin 

Auth., 589 S.W.2d 671, 678 (Tex. 1979).

“Under Texas law, when one party repudiates a contract, the 

nonrepudiating party has the right to accept the repudiation and bring a cause of 

action for damages immediately, or to keep the contract alive and sue for 

damages as they accrue.” Thomas v. Thomas, 902 S.W.2d 621, 624 (Tex. 

App.—Austin 1995, writ denied); see Ingersoll-Rand Co. v. Valero Energy Corp., 

997 S.W.2d 203, 211 (Tex. 1999). “[A] contract cannot be thus treated, for one 

purpose, as subsisting, and, for another purpose, as at an end. Upon such a 

repudiation . . . the other may make his choice between the two courses open to 

him, but can neither confuse them together nor take both.” Greenwall Theatrical 

Circuit Co. v. Markowitz, 97 Tex. 479, 487, 79 S.W. 1069, 1071–72 (1904).
10

Here, when Accor allegedly communicated its intent to make no further 

payments under the MSA, TRC did not treat the MSA as terminated and sue 

Accor for the anticipatory breach. Instead, TRC suspended service, an option 

available to it under Modification 2, and sued Accor years later, after the MSA 

had expired. TRC argues that it did not treat the MSA as continuing in effect 

because it suspended service, but Modification 2 did not provide for termination 

of the MSA in the event that TRC suspended service. By electing to file suit after 

the time for performance of the MSA, TRC chose to ignore Accor’s alleged 

anticipatory repudiation, see Bumb v. InterComp Techs., LLC, 64 S.W.3d 123, 

125 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (reasoning similarly), and to 

purse a claim for breach of contract; indeed, the jury charge included no less 

than four different questions inquiring into whether Accor failed to comply with the 

MSA. See Am.’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 626 (Tex. 

App.—San Antonio 1996, writ denied) (“Since the time for performance had 

passed in the instant case, Samaras clearly was entitled to sue for breach of 

contract and to elect to have the issue submitted to the jury as an express breach 

or failure to comply.”).

We hold that the trial court did not err by granting Accor’s motion for partial

summary judgment on TRC’s anticipatory repudiation claim. We overrule TRC’s 

first issue.
11

IV. WAIVER FINDINGS

In its second and third issues, TRC argues that the evidence is legally and 

factually insufficient to support the jury’s findings in question numbers 2(a) and 

3(a) that TRC waived, through its course of conduct, strict compliance with 

Modification 2’s payment deadlines.

We may sustain a legal sufficiency challenge only when (1) the record 

discloses a complete absence of evidence of a vital fact; (2) the court is barred 

by rules of law or of evidence from giving weight to the only evidence offered to 

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a 

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital 

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), 

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and 

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In 

determining whether there is legally sufficient evidence to support the finding 

under review, we must consider evidence favorable to the finding if a reasonable 

factfinder could and disregard evidence contrary to the finding unless a 

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 

(Tex. 2005).

When reviewing an assertion that the evidence is factually insufficient to 

support a finding, we set aside the finding only if, after considering and weighing 
12

all of the evidence in the record pertinent to that finding, we determine that the 

credible evidence supporting the finding is so weak, or so contrary to the 

overwhelming weight of all the evidence, that the answer should be set aside and 

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) 

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 

395 S.W.2d 821, 823 (Tex. 1965).6

Jury question number 2(a) specifically referenced payment for 

nonrecurring services. And although jury question number 3(a) generally asked 

if TRC had waived strict compliance with the requirements of paragraph g.1.(b) of 

Modification 2, which appears to apply to payments for both recurring and 

nonrecurring services, jury question number 3 specifically asked if Accor had 

allowed invoices to remain unpaid for at least thirty days beyond their due date, 

as set forth in paragraph g.1.(b). The record reflects that at the time of the 

suspension of service, the only invoices that were unpaid for at least thirty days 

beyond their due date were for nonrecurring services. Thus, we consider in our 

sufficiency analysis whether TRC waived strict compliance with Modification 2’s

payment deadlines for nonrecurring services.

Waiver is the intentional relinquishment of a right actually known, or 

intentional conduct inconsistent with claiming that right. Ulico Cas. Co. v. Allied 

 

6We apply these same standards of review to TRC’s other arguments that 

challenge the legal and factual sufficiency of the evidence to support a jury 

finding.
13

Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008). The elements of waiver include 

(1) an existing right, benefit, or advantage held by a party; (2) the party’s actual 

knowledge of its existence; and (3) the party’s actual intent to relinquish the right, 

or intentional conduct inconsistent with the right. Id. TRC’s argument implicates 

the third element.

Modification 2’s section (b) required Accor to pay invoices for nonrecurring 

services within fourteen days of invoicing. Section g.1.(b) made it a material 

default if fees, including nonrecurring fees, remained unpaid for thirty days 

beyond the due date. These contractual provisions formed the bases for jury 

question numbers 2, 2(a), 3, and 3(a). But while these provisions established 

deadlines for making payments for nonrecurring services and for determining 

when a material default occurred, the record demonstrates that the parties 

engaged in a process for resolving disputed fees for nonrecurring services that 

supplanted those contractual obligations.

Jessie Burgess, Accor’s Senior Director of IT telecommunication, testified 

that early in their relationship, the parties experienced difficulty timely invoicing, 

reviewing, and paying fees for nonrecurring services. Anthony D’Amico, TRC’s 

president and CEO, testified similarly—that there were some issues getting 

invoices for nonrecurring services approved and paid. Eventually, the parties 

worked out a “dispute resolution process.” Under this procedure, Accor would 

receive a batch of electronic invoices from TRC twice a month. Accor would then 
14

review each invoice for correctness and either pay it as a capital expenditure, 

identify it as disputed, or submit it to accounts payable. According to TRC, the 

parties met every week to resolve the disputed invoices; sometimes Accor would 

pay the invoice, and other times invoices would be reduced or eliminated.

Significantly, regarding the length of time that it took an invoice to go

through the dispute resolution process, Mark Boggess, a data analyst at Accor 

who worked on the nonrecurring-services invoices, opined that the whole 

process took anywhere from two weeks to thirty days. Burgess similarly

described the process as a “30-day processing cycle.” Timothy Grossenbacher, 

TRC’s COO at the time of the suspension of service, testified that it could take up 

to forty-five days to work out a disputed invoice. D’Amico testified that the 

dispute resolution process was not a “rubber-stamp process” and that there were 

a few delays in getting some of the invoices paid.

As for whether any of the overdue invoices for nonrecurring services 

contained on the spreadsheet attached to TRC’s demand that Accor pay 

$311,183.33 were in the dispute resolution process, Burgess explained that the 

invoices “very well could have been in the dispute process, which is more than 

likely why they would not have been paid.” Indeed, he testified, “I can tell you if 

it’s a 30-day processing cycle and we had just received, say, a bill for August 1st 

and it was August 24th, then that August 1st through 15th was likely still in the 

system being processed.”
15

The evidence thus demonstrates that, as to disputed invoices, the parties

informally adopted, and operated under, a dispute resolution process that 

effectively supplanted Modification 2, section (b)’s requirement that Accor pay 

invoices for nonrecurring services within fourteen days of invoicing and 

section g.1.(b)’s determination that a material default occurred when

nonrecurring fees remained unpaid for thirty days beyond their due date. Under 

the process actually implemented by the parties, and contrary to Modification 2’s 

fourteen- and thirty-day deadlines, disputed invoices were received, reviewed, 

and paid or not paid over a period of time that took anywhere from two weeks to 

forty-five days.

Notwithstanding this evidence, TRC argues that the evidence is insufficient 

to support the jury’s findings because “[n]o witness testified that the overdue 

invoices . . . remained unpaid because those invoices were in the dispute 

process.” Instead, “[t]he best Accor’s witness could muster was a guess that the 

unpaid invoices ‘could have been in the dispute process.’” We disagree with 

TRC’s assessment of the record. The jury could have relied upon the 

circumstantial evidence detailed immediately above to conclude that the unpaid 

invoices contained on the spreadsheet attached to TRC’s demand letter were in 

the dispute resolution process. See Lozano v. Lozano, 52 S.W.3d 141, 149 

(Tex. 2001) (stating that circumstantial evidence may be used to establish a 

material fact). Moreover, Burgess unequivocally testified that Accor did not 
16

arbitrarily make the decision to pay or not pay an invoice; rather, “[i]t would be 

because it was disputed why it would not be paid.”

TRC additionally contends that it did not waive its rights, but instead 

exercised them, because after demanding, and failing to receive, payment from 

Accor, TRC suspended service to Accor’s properties—conduct that was “entirely 

consistent with its rights under the contract.” TRC certainly demanded payment 

from Accor and suspended service to Accor’s properties in August 2006, but we 

cannot ignore the evidence demonstrating that throughout much of the initial term 

of the MSA, TRC intentionally engaged in conduct that was inconsistent with its 

rights under sections (b) and g.1.(b) of Modification 2 to the MSA. See Ulico 

Cas. Co., 262 S.W.3d at 778. Accordingly, we hold that the evidence is legally 

and factually sufficient to support the jury’s findings that TRC waived, through its 

course of conduct, strict compliance with Modification 2’s payment deadlines. 

We overrule TRC’s second and third issues.

V. TRC’S BREACH

In its fourth issue, TRC argues that the evidence is legally and factually 

insufficient to support the jury’s finding that TRC breached the MSA by 

“improperly suspending services . . . after demanding payment for invoices that 

were not more than thirty (30) days overdue.” TRC contends that it not only had 

the right to declare a material default because “past due fees remain[ed] unpaid 

for thirty (30) days beyond the due date” (referencing the final part of 
17

section g.1.(b) of the MSA), but that it also had the right to declare a material 

default because Accor failed to provide payment “in strict accordance with the 

dates, deadlines and obligations set forth” in the MSA (referencing the first part of 

section g.1.(b) of the MSA). TRC acknowledges that it “may have been 

improper” to suspend service if the suspension was based on Accor’s failure to 

pay invoices that were not yet due, but TRC contends that it did not do that; it

asserts that it instead suspended services because “there were payments that 

were over thirty days overdue.”

TRC’s arguments ignore the effect of the jury’s finding. TRC’s theory at 

trial was that it suspended service because Accor committed a material default 

under two different parts of section g.1.(b) of Modification 2—the part that 

required Accor to “provide payment in strict accordance with the dates, deadlines 

and obligations set forth” in the MSA and the part that made it a material default 

when “past due fees remain[ed] unpaid for thirty (30) days beyond the due date.”

But Accor’s theory at trial was that TRC suspended service because Accor 

refused to pay for invoices that were not yet due. Thus, like in most, if not all,

cases, the jury was responsible for resolving a conflict between competing 

theories about an ultimate fact, and it did so when it answered jury question 

number 5A in Accor’s favor. By finding that TRC improperly suspended service 

after demanding payment for invoices that were not more than thirty days 

overdue, the jury impliedly rejected TRC’s argument that it suspended service as 
18

a result of Accor’s failure to pay invoices that had remained unpaid for thirty days 

beyond their due date. Contrary to TRC’s arguments, the mere existence of 

competing theories at trial does not render the evidence legally or factually 

insufficient, nor may we decide the issue on the mere ipse dixit of TRC.7

As mentioned above, of the $311,183.33 that TRC demanded Accor pay to 

avoid suspended service, approximately $284,000 was not yet due and 

approximately $23,000 had gone unpaid for at least fourteen, but less than thirty,

days. TRC argues that there is nothing in the MSA that prohibited it from 

demanding payment for invoices that were not thirty days overdue, but TRC did 

not limit its actions to merely demanding payment of invoices that were not thirty 

days overdue; as the jury found, TRC took the additional step of actually 

suspending service after demanding payment for invoices that were not more 

than thirty days overdue. Modification 2 permitted TRC to suspend service in the 

event of a material default, but a material default did not include the reason for 

which TRC suspended service.

We hold that the evidence is legally and factually sufficient to support the 

jury’s finding in question number 5A. We overrule TRC’s fourth issue.

 

7

TRC does not argue that any of the jury’s findings conflict.
19

VI. JURY QUESTION NUMBER 12

TRC argues in its fifth issue that the trial court erred by submitting jury 

question number 12, Accor’s damages question, without an instruction setting 

forth the measure of damages.

Damages must be measured by a legal standard, and that standard must 

be used to guide the factfinder in determining what would compensate the injured 

party. Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 90 (Tex. 1973). A jury 

question that fails to guide the jury on any proper legal measure of damages is 

fatally defective. Id. However, to complain on appeal about a damages question 

that omits an instruction on the measure of damages, the complaining party must

not only object to the omission, it must also tender a written instruction in 

substantially correct form. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 

538 n.4 (Tex. 1981); Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 902–03 

(Tex. App.—Austin 1991, no writ).

Here, although TRC objected that jury question number 12 did not properly 

set out any elements of damages to be considered by the jury, it did not tender a 

written instruction on the proper measure of damages in substantially correct 

form. Therefore, TRC did not preserve this issue for appellate review.

Relying on the oft-quoted language in State Department of Highways and 

Public Transportation v. Payne that “[t]here should be but one test for 

determining if a party has preserved error in the jury charge, and that is whether 
20

the party made the trial court aware of the complaint, timely and plainly, and 

obtained a ruling,” TRC argues that it preserved error because it sufficiently 

made the trial court aware of its complaint and obtained a ruling. 838 S.W.2d 

235, 241 (Tex. 1992). The supreme court in Payne held that a question 

submitted in writing by the State was sufficient to preserve its argument on 

appeal that the trial court erred by submitting an erroneous jury question. Id. at 

239–41. This case presents a completely different set of circumstances. The 

issue here concerns the omission of an instruction on the proper measure of 

damages. While rule of civil procedure 272 expressly permits a party to object to 

a jury question either in writing or orally, rule 278 specifically requires that 

challenges to the omission of an instruction be preserved by written submission 

in substantially correct form. Tex. R. Civ. P. 272, 278; see Payne, 838 S.W.2d at 

241 (“[W]e do not revise our rules by opinion.”). Considering Payne’s specific 

facts and the rules of civil procedure, we agree with Accor that Payne did not 

abrogate the rule in Cameron that a party must have tendered a written 

instruction on the measure of damages in substantially correct form to later 

complain on appeal about a damages question that omitted an instruction on the 

measure of damages. See, e.g., Elliott v. Whitten, No. 01-02-00065-CV, 2004 

WL 2115420, at *11–12 (Tex. App.—Houston [1st Dist.] Sept. 23, 2004, pet. 

denied) (mem. op.) (reasoning similarly).
21

TRC argues that it would have been “sheer guesswork to try to craft such 

an instruction because Accor itself never disclosed to the court or [TRC] what

damages it was suing for,” but as we explain in addressing TRC’s sixth issue, the 

jury’s damages award was not derived from sheer guesswork. We decline to 

overlook TRC’s burden to tender a written instruction on account of Accor’s 

purported omissions throughout the litigation. We overrule TRC’s fifth issue.

VII. ACCOR’S DAMAGES

In its sixth issue, TRC argues that the evidence is legally and factually 

insufficient to support the jury’s finding in question number 12 that Accor 

sustained damages in the amount of $236,174.70. TRC contends that the only 

evidence about Accor’s damages was Burgess’s testimony that after TRC 

suspended service, but before Source completed its transition period, Accor had

to use internal employees to answer the help line, there was a risk that Accor

could incur liability if its 911 service did not function properly, and the potential 

existed that any customers who had a negative experience could choose to not 

stay at another of Accor’s properties in the future. TRC argues that Accor 

“provided no scintilla of quantification for any valuation for these concerns over 

liability of loss of customers, or damages in any other form.” We agree that 

Accor offered no evidence attempting to quantify Burgess’s testimony about 

potential liability, but there was other evidence that the jury relied upon to arrive 

at its damages award.
22

“The universal rule for measuring damages for the breach of a contract is 

just compensation for the loss or damage actually sustained.” Stewart v. Basey, 

150 Tex. 666, 670, 245 S.W.2d 484, 486 (1952). As Accor explains, the

evidence shows that it paid TRC recurring-services fees for August and 

September 2006 but that Accor did not receive the recurring services for part of 

August and all of September 2006 because TRC had suspended service. 

Calculating the recurring-services fee paid per day for the month of August 2006

(approximately $6,383), multiplying it times six days8(August 26 through August 

31, 2006), and adding it to a recurring-services fee for September 2006 

($197,876.10) results in a figure of $236,174—an amount identical to the finding 

made by the jury in question number 12.

TRC argues that Accor was not entitled to recover damages for the August 

and September 2006 recurring services that it paid because section g.1.(b) of 

Modification 2 provided that “any suspension of Services resulting from such 

Default shall not relieve [Accor] of monies due under this Agreement for the term 

of any such suspension.” However, this language required Accor to continue to 

pay for services during the period of a suspension; it does not prohibit a jury from 

later awarding Accor damages based on services that Accor paid for, but did not 

receive, as a result of an improper suspension and breach by TRC. See Dynegy 

 

8

TRC suspended service on August 24, 2006, but the jury apparently did 

not count August 25, 2006, as a day that Accor did not receive recurring 

services.
23

Midstream, Servs., L.P. v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009) (“We 

give contract terms their plain and ordinary meaning unless the instrument 

indicates the parties intended a different meaning.”).

TRC additionally argues that because the jury found in question 5B that 

TRC did not improperly continue suspending service after it had received 

payment of overdue invoices on September 1, 2006, “the period of any wrongful 

suspension is confined to August 24-September 1,” and there is no evidence 

that Accor sustained $236,174.70 in damages during that brief period. But as we 

have explained before, a jury’s failure to find a particular fact merely means that 

the proponent failed to meet its burden of proving the fact by a preponderance of 

the evidence. Dunnagan v. Watson, 204 S.W.3d 30, 40 (Tex. App.—Fort Worth 

2006, pet. denied) (citing C & R Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 

(Tex. 1966)). It does not mean the reverse of the failed fact finding. Id. Thus, 

the jury was not precluded from considering as damages the fees that Accor paid 

TRC for September’s recurring services.

We hold that the evidence is legally and factually sufficient to support the 

jury’s damages finding. We overrule TRC’s sixth issue.

VIII. ATTORNEYS’ FEES

In its seventh issue, TRC challenges the legal and factual sufficiency of the 

evidence to support the jury’s finding in question number 14 awarding Accor 

$190,000, $25,000, and $5,000 in attorneys’ fees for, respectively, representation 
24

at the trial level, at the court of appeals, and at the supreme court. Just before 

TRC rested, it presented testimonial and documentary evidence of its attorneys’ 

fees. The following exchange then occurred during Accor’s cross-examination of 

TRC’s attorney:

Q. I didn’t go to Cal Tech and -- but I’ve heard that for 

every action, there is a corresponding and opposite reaction. Is that 

an engineering principle?

A. Yes, it is.

Q. I would, therefore, assume that the figures that you 

have stated for your firm as reasonable charges would be figures 

that would be certainly reasonable for Accor in response to the -- the 

amounts that -- and time that was spent?

A. Yes. I think it’s commensurate on both sides.

For whatever reason, Accor did not go on to present any evidence of its own

attorneys’ fees. Nevertheless, Accor argues that the evidence is legally and 

factually sufficient to support the jury’s award because TRC’s attorney’s 

testimony that he thought the reasonableness of the fees charged was 

commensurate on both sides constituted either a judicial admission, thus 

dispensing with the need for Accor to present evidence of reasonable attorneys’ 

fees, or a quasi-admission, which is some evidence supporting the jury’s award. 

We disagree with each explanation.

A judicial admission is a formal waiver of proof usually found in pleadings 

or the stipulations of the parties. Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 

606 S.W.2d 692, 694 (Tex. 1980). It is conclusive upon the party making it, and 
25

it relieves the opposing party’s burden of proving the admitted fact and bars the 

admitting party from disputing it. Id. The public policy underlying the rule is that 

it would be unjust to permit a party to recover after he has sworn himself out of 

court by clear, unequivocal testimony. Id. The elements commonly recited for a 

judicial admission are: (1) a statement made during the course of a judicial 

proceeding; (2) that is contrary to an essential fact or defense asserted by the 

person making the admission; (3) that is clear, deliberate, and unequivocal; 

(4) that, if given conclusive effect, would be consistent with public policy; and 

(5) that is not destructive of the opposing party’s theory of recovery. Lee v. Lee, 

43 S.W.3d 636, 641–42 (Tex. App.—Fort Worth 2001, no pet.); see Mendoza, 

606 S.W.2d at 694.

Our supreme court has confirmed the requirements that the admission be 

clear and intentional. In Gevinson v. Manhattan Construction Co. of Oklahoma, 

the court reasoned, “[W]hether the admission be made orally from the witness 

stand or in a written instrument introduced in evidence, it is essential, among 

other things, that the statement be clear and unequivocal.” 449 S.W.2d 458, 466 

(Tex. 1969). And as Justice Greenhill once explained, “It is of the nature of an 

admission, plainly, that it be by intention an act of waiver.” Griffin v. Superior Ins. 

Co., 161 Tex. 195, 204, 338 S.W.2d 415, 420 (1960) (Greenhill, J., dissenting) 

(quoting 9 Wigmore on Evidence (3rd Ed.) 597, § 2594a) (emphasis added).
26

Here, Accor’s question and TRC’s attorney’s answer can be interpreted in 

any number of ways. One interpretation—Accor’s—is that TRC admitted or 

stipulated that Accor is entitled to recover over $200,000 in reasonable attorneys’

fees. Another interpretation—TRC’s—is that TRC did not admit anything, 

including that Accor is entitled to recover attorneys’ fees. Yet another 

interpretation—considering that Accor’s question was posed before it had 

presented its case-in-chief—is that Accor was merely setting the stage to prove 

up its own attorneys’ fees by asking TRC’s attorney something to the effect of, 

“Well, if your figures are reasonable, wouldn’t my figures, which are similar to 

yours, also be reasonable?” However, our responsibility on appeal is not to 

determine whether potential interpretation A is correct, whether potential 

interpretation B is correct, or whether potential interpretation C is correct. Our 

task is to recognize that because multiple interpretations of the testimony exist,

TRC’s attorney did not clearly admit that Accor was entitled to recover 

reasonable attorneys’ fees. The matter is anything but clear. And if TRC’s 

attorney did not clearly so admit or stipulate, we cannot conclude that TRC

deliberately, or intentionally, waived the requirement that Accor present evidence 

of reasonable attorneys’ fees.

In addition to requiring a clear and deliberate statement, “it is important to 

consider whether the statement relates to facts peculiarly within the declarant’s 

own knowledge or is simply his impression of a transaction or an event as a 
27

participant or an observer.” Gevinson, 449 S.W.2d at 466. This is because “[i]f a 

party’s testimony consists only of a narrative of events in which he participated or 

which he observed, there is an obvious possibility that he may be mistaken like 

any other witness.” Griffin, 161 Tex. at 204, 338 S.W.2d at 420 (Greenhill, J., 

dissenting).

TRC’s attorney’s testimony that he thought the reasonableness of the fees 

charged was commensurate on both sides appears to be nothing more than the 

impression that he gathered from litigating the case against Accor for several 

years. There is nothing in the record to indicate that he had any knowledge 

about the peculiars of Accor’s attorneys’ fees. See Mendoza, 606 S.W.2d at 695 

(“We are of the opinion that Mendoza’s opinion testimony was not so clear and 

unequivocal as to come under the rule announced in Carr, and that the possibility 

of a mistake has not been eliminated.”).

Accor alternatively argues that TRC’s attorney’s testimony was a quasiadmission and, therefore, some evidence of reasonable attorneys’ fees. Unlike a 

judicial admission, a quasi-admission is not conclusive upon the person making 

the admission, but it is some evidence of the statement. Id. at 694. 

Nonetheless, the reasonableness of attorneys’ fees is generally a question of fact 

to be determined by the factfinder, and the award, if any, must be supported by 

competent evidence. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). 

When considering the reasonableness of a fee, the factfinder should consider the 
28

factors set out in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 

812, 818 (Tex. 1997). The supreme court also recently clarified that a lodestar 

calculation requires certain basic proof necessary to support an award of 

reasonable attorneys’ fees—evidence about the number of hours worked, the 

rate charged, the nature of the work, and when the work was performed. See 

El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012).

To the extent that TRC’s attorney’s statement is a quasi-admission, it was 

conclusory and devoid of any evidentiary substance upon which the jury could 

have based its fees award because there is no evidence attempting to establish 

the reasonableness of the fees through application of any of the Arthur Andersen

factors or, if applicable, the El Apple requirements. Accor argues that it can rely 

upon TRC’s attorney’s testimony as evidence of the El Apple requirements, but 

that evidence was specific to TRC’s attorneys’ fees, not Accor’s. The record is 

completely devoid of any evidence specifically detailing the reasonableness of 

Accor’s fees, and a bare conclusion offered by TRC’s attorney simply cannot 

supply the proof necessary to support the jury’s award. See, e.g., In re A.A.L., 

No. 12-11-00161-CV, 2012 WL 1883763, at *2–3 (Tex. App.—Tyler May 23, 

2012, no pet.) (mem. op.) (“Renee’s attorney did not testify, nor did he present an 

affidavit, itemized statements, exhibits, or any other offer of proof, about the 

reasonableness of his fees.”); O & B Farms, Inc. v. Black, 300 S.W.3d 418, 422–

23 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“Counsel’s bare 
29

testimony of the name of his law school, his years practicing, and the hours he 

worked on the case does not establish that any particular fee is reasonable.”); 

see also Cas. Underwriters v. Rhone, 134 Tex. 50, 54, 132 S.W.2d 97, 99 (1939) 

(reasoning that bare conclusions, even if admitted without objection, are no 

evidence).

We hold that the evidence is legally insufficient to support the jury’s award 

of attorneys’ fees to Accor. Accordingly, we sustain TRC’s seventh issue.

IX. CONCLUSION

Having sustained TRC’s seventh issue, we modify the final judgment to 

delete the portion awarding Accor $190,000 in attorneys’ fees for preparation and 

representation in the trial court; $25,000 in attorneys’ fees for an unsuccessful 

appeal by TRC in the court of appeals; and $5,000 in attorneys’ fees for an 

unsuccessful appeal by TRC to the supreme court. Having overruled the 

remainder of TRC’s issues, we affirm the trial court’s judgment as modified. See

Tex. R. App. P. 43.2(b).

/s/ Bill Meier

BILL MEIER

JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DELIVERED: March 13, 2014